Document Type
Book Chapter
Publication Date
6-2025
Abstract
Chinese courts routinely ask defendants to pay damages without evidence of negligence while relying on concepts such as fairness, substantive justice, or discretion. This chapter examines how Chinese courts arrive at decisions that feel fair or just in cases where they refer to those ideas. Analysis of a dataset of 10,000 judicial decisions in personal injury cases suggests that Chinese courts refer to these concepts when they impose liability on two types of parties: (1) participants in a shared activity and (2) those who control a physical space. By assigning legal responsibility in these cases, Chinese courts acknowledge traumatic harm, spread economic losses through communities, and, when they award substantial sums, act as agents of redistribution. These practices survived the 2021 adoption of the Civil Code, which reduced courts’ discretion to impose equitable liability in tort cases. This study therefore points to several potentially distinctive features of China’s embrace of legal heterodoxy in tort law. Those features include the ongoing influence of China’s socialist and pre-revolutionary legal traditions, divergence between legal provisions and legal practice, and the possibility that heterodox practices will serve bureaucratic interests and Party-state goals along with other social policy goals.
Disciplines
Comparative and Foreign Law | Law | Torts
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License
Recommended Citation
Benjamin L. Liebman, Rachel E. Stern, Eva Wenwa Gao & Xiaohan Wu,
Tort Law Heterodoxy in China,
Legal Heterodoxy in the Global South, Kevin E. Davis & Mariana Pargendler (Eds.), Cambridge University Press
(2025).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/4711